MALANG SHAH Versus UMAR SHAH

CH. MUHAMMAD ARIF, J.‑‑‑ Through this petition under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, challenge has been made to judgment and decree dated 2‑5‑1996 passed by a learned Judge in Chamber of the Balochistan High Court, Quetta in Civil Revision No.69 of 1996 upholding the judgments and decrees dated 30‑5‑1995 and 30‑11‑1995 respectively passed by learned Qazi, Dalbandin and Majlis‑e Shoora, Kalat at Mastung, with the result that the suit of.the petitioner was dismissed at all levels.

2. A brief resume of the facts leading to the institution of this petition are that the petitioner brought a suit in the Court of learned Qazi, Dalbandin claiming possession of two Bundat of land situated in 'MAYAN' on the basis of ownership. His case was that about 15 years prior to institution of the suit 'Laths' were constructed by placing mud and stones on two Bundat in dispute and that the land within that boundary was brought under cultivation. The respondents/defendants unjustifiably encroached upon their two Bandat of land and have raised new Bandat by buldozing and dismantling the original Bandats raised by the plaintiff.

3. The case of the petitioner was controverted in the written statement filed by the other side on 14‑3‑1995 and the valuation was specifically challenged therein. The respondent claimed to have spent huge amount on raising the Bandat on suit land. The pleading of the parties gave rise to the following issues:‑‑

4. Petitioner, apart from appearing as his own witness, produced Imam Bakhsh, Gul Muhammad Mulla' Umer Shah and Matlab Shah P.Ws. I to IV respectively. In rebuttal, the other side examined 5 witnesses namely D.W.1 Muhammad Azeem, D.W.2 Mulla Rahim, D.W.3 Sharif, D.W.4 Ali Dost and D.W.5 Abdul Wahid and statement of attorney Madad Shah was also got recorded. After appraising the evidence of the parties. in the case, the learned Qazi resolved issue No.1 against the plaintiff and Issue No.2 was decided in favour of the defendants with the result that the suit of the petitioner stood dismissed.

5. Petitioner remained unsuccessful in preferring Civil Appeal before Majlis‑e‑Shoora, Kalat at Mastung. It was held that the petitioner had failed to produce any evidence in support of his claim and that his witnesses Matlab Shah and Mulla Umer Shah had indicated wrong demarcation‑lines in relation to the suit‑land, Imam Bukhsh has knowledge about the ownership of the petitioner and even Mulla Umer Shah falls in the same category. This appeal was dismissed on 30‑5‑1995. Petitioner's Revision Petition under section 115, C.P.C. was dismissed by the learned Judge in Chamber vide the impugned judgment, holding that parties had failed to produce any documentary evidence for substantiating their respective ownership and title; scrutiny of the evidence of the petitioner indicates that it is full of contradictions; the forums below had properly appraised the evidence in the case and that re‑evaluation of the entire material leads to irresistible conclusion that petitioner has failed to establish his right or title to the suit‑land with the result that the relief claimed in the suit cannot be granted.

6. Hafiz S.A. Rehman, learned counsel appearing in support of this petition, has simply reiterated the plea raised before the High Court to the effect that the judgments and decrees of learned Qazi, Dalbandin and Majlis‑e‑Shoora cannot be sustained in that the Appellate forum has failed to go by the provisions of Rule 31 of Order XLI, C.P.C. His case is that the Appellate Court's judgment did not proceed in the order in which it was required to, under the provisions aforequoted i.e. stating the points for determination; the decision thereon and the reasons for the decision. When it was pointed out to the learned counsel that the judgment rendered by the Majlis‑e‑Shoora need not strictly abide by the provisions contained in the C.P.C., he argued that the Appellate Forum/Majlis‑e‑Shoora had to resolve the cause by pointing out the matters on which the parties are at variance at that level. Since no such effort was made by it, it was submitted by him, the learned Single Judge of the High Court was possessed of the jurisdiction to undo the wrong done, in the exercise of his jurisdiction under section 115, C.P.C. We are afraid the arguments have been advanced only to reiterate the plea raised on behalf of the petitioner in the memo of revision to the effect that the Appellate Court had ".. not decided the ground raised in appeal". It was during the arguments before the High Court that on behalf of the petitioner reference was made to certain precedents from this Court in support of the plea that non‑compliance of the said provision cannot be allowed to hold the field and, therefore, the case should be remanded to the Court whose judgment had been impugned in order to record a judgment in accordance with law. We find that all the forums are one on the point that the petitioner‑plaintiff had miserably failed to prove his case, as alleged in the plaint. It is not denied that the burden of proof of Issue No.1 was on the petitioner/plaintiff and that the evidence led by him, in that regard, was fully considered by the Trial Court/learned Qazi, Dalbandin as also by Majlis‑e Shoora. It is not the case of the petitioner that a bit of evidence brought on the record by him, has escaped notice of any one of the forums seized of his suit, appeal or revision. That being the position, we are not inclined to the view that any ground has made for granting leave to appeal to the petitioner. The petition is dismissed and leave is refused.

A.A./M‑77/S Leave refused.